T B RAMCHANDRA RAO Vs. ANSRAMCHANDRA RAO

JUDGEMENT

(1.) On August 6, 1858, Ramajee Bavajee Pandit, who died on August 10, 1858, executed a deed of settlement of all his moveable and immoveable properties. It is prefaced by a statement that he had adopted Panchapikes, the second son of Mahasubd Rajaram, and, after various gifts and dispositions which are not material, it continued in these terms:- Out of the remaining property, after deducting the above, my adopted son, to whom I have given the name of Bavajee Pandit, shall bo entitled to and enjoy half of the property. Out of the remaining half of the property these two persons, namely, (my) senior wife Sowbhagiavathy Kamatchi and junior wife Sowbhagiavathy Thulja shall take half and half.

(2.) In 1894 one acre and 74 cent. of the land so given, and then in the possession of Thulja Boyee, was acquired by the Government. The usual proceedings for determining the amount of compensation appear to have taken place, and no dispute arose as to the award, but a question did arise as between Ramajee Bavajee Pandit, the adopted son, and the widow as to the character and extent of the estate that she took under the will. If she took absolutely, the money could be divided forthwith; but if she took a limited interest, her share would have to be invested. It was consequently necessary that this dispute should be determined in order that the compensation monies should be properly dealt with. Section 31, Sub-section 2, of the Land Acquisition Act, 1894, expressly contemplates this position, for after referring in Sub-section 1 to the payment of the compensation by the Collector to the persons interested, Sub-section 2 provides that "if there be no persons competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted." Section 18 does not define the Court; this is done by Section 3, Sub-section (d), which provides that a Court means a principal Civil Court of original jurisdiction, unless a special judicial officer within specified limits has been appointed to perform the functions of the Court under the Act. Section 32 further provides that when money has been deposited in Court under Sub- section 2 of Section 31, and it appears that the land whereof the same was awarded belonged to any person who had no power to alienate, the Court shall order the money to be invested as therein mentioned. Now the dispute between Bavajee and the widow was plain upon the face of the document. It depended upon whether the deed had conferred an absolute heritable and alienable estate upon the widow, or whether she took either a limited Hindu widow's estate or a heritable estate which she was incapable of alienating. What the actual proceedings were that ensued between them is not plain, but they must have come before the District Court of Tanjore, for the grounds of appeal from the order of that Court are before their Lordships, and from these it appears that the District Judge had held that the widow had an absolute estate. From this decision Bavajee brought the appeal to the High Court of Judicature at Madras. Judgment was delivered by the High Court on July 13, 1897, by Sir Arthur Collins C.J. and Mr, Justice Shephard. Their judgment is short, and, as it throws considerable light upon the whole proceedings, it is desirable that it should be reproduced in full. It is as follows:- The first question is what estate the widow Thulja Boyee took under the gift of 1858. We cannot agree with the District Judge that the law is unsettled on the question of such gifts. There being no indication of intention to give a large estate, we must assume that the husband intended that a widow's estate only should pass. This being so it is quite clear that Secs.31 and 32 of the Act apply. The order must be set aside as the parties are not agreed as to the mode in which the money should be invested. We must direct the District Judge to pass order under the provisions of Section 32. Each party to bear his own costs of this appeal.

(3.) On June 10, 1911, and again on January 11, 1916, Thulja Boyee executed wills and bequeathed all her moveable and immoveable properties to the first respondent; she died on April 2, 1916. The adopted son, Bavajee Ramajee Pandit, also died at a date subsequent to the decision of the High Court, but the exact time is not stated, nor is it material, and the present appellant and his brother Jeevanna Rao, now deceased, were his two sons. On July 12, 1916, they instituted the suit out of which those proceedings have arisen against the claimants under Thulja's will, alleging that she had only a limited estate under the deed of settlement, and that she had no power to dispose of the properties by will. The learned Subordinate Judge decided in their favour, but this decision was reversed by the High Court, from whose decree the present appeal has been brought. Both the judgments of the Subordinate Judge and the High Court depended upon the true effect of the deed of settlement, but, for reasons which their Lordships will shortly explain, they do not think that this question was open to either of the Courts.